Disability & Employment Law in New York State: Analysis and
Recommendations
October 2010

New York Makes Work Pay is a Comprehensive Employment
System Medicaid Infrastructure Grant (#1QACMS030318) from the U.S.
Department of Health and Human Services, Centers for Medicare and
Medicaid Services (CMS) to the Office of Mental Health on behalf of New
York State. It is a joint effort of the Burton Blatt Institute at
Syracuse University and the K. Lisa Yang and Hock E. Tan Employment and Disability Institute at
Cornell University with the collaborative support of the Employment
Committee of the New York State Most Integrated Setting Coordinating
Council (MISCC) to develop pathways and remove obstacles to employment
for New Yorkers with disabilities.

The unemployment rate for people with disabilities is substantially
higher than for people without disabilities, both nationally and in New
York. The general unemployment rate nationwide as of May 2010 is 9.1%. 2 The unemployment rate for people with disabilities
nationwide as of May 2010 is 14.7% - over 60% higher. 3
The current recession has disproportionately impacted employment of
people with disabilities, whose employment levels dropped at three times
the rate of nondisabled workers. 4 This
disproportionate impact may indicate the influence of disability-based
discrimination in employment.

The state of New York has passed laws intended to safeguard workers
with disabilities from employment discrimination. New York State Human
Rights Law ("NYSHRL";), 5 provides a legal
definition of disability, 6 and details when the
behavior of an employer may constitute an "unlawful discriminatory
practice." 7 It also establishes procedures that
allow workers who experience unlawful discrimination by employers to get
various forms of relief, such as financial compensation or
reinstatement. 8 Further, it enables the state to fine
employers who have engaged in unlawful discriminatory practices. 9

The NYSHRL is the primary civil rights statute that protects
workers with disabilities in New York. There are also state laws that
bear on the rights and experiences of state government workers with
disabilities in New York, such as Title 4 of the New York Code of Rules
and Regulations, 10 and Civil Service Law
sections 72-73, 11 both of which apply to state
employees who have or develop disabilities that may require medical
leave.

To better understand the relevant laws, it is helpful to review how
courts interpret the laws and make sense of workers' disability
discrimination claims. Part I of this paper briefly reviews some
concepts significant in disability civil rights law, at state and
federal levels. Part II draws on relevant statutes and court decisions
in order to review the fundamentals of disability discrimination claims,
and advance a comparison between state and federal law. Part III
reviews laws specific to state government employees (i.e. civil
servants). Part IV looks at the law specific to New York City, which
expands on the protections available under the state law. Although New
York City law does not apply to the rest of the state outside of its
borders, it has some influence and provides a useful comparison. Part V
briefly compares New York to other states, to consider differing
approaches to disability civil rights at the state level. Finally, Part
VI summarizes comparative advantages between using city, state, and
federal law to combat disability discrimination, and makes
recommendations for using and improving the laws, in order to increase
employment of people with disabilities.

Disability civil rights laws build upon the legacy and principles of
race and gender civil rights laws. However, there are important
differences. Whether under Constitutional equal protection standards, or
civil rights models grounded in a Constitutional conception of
equality, race or sex discrimination are often found to be legally
present when persons are treated differently based on the demographic
category. Because every person has a race and a gender, civil rights
approaches to race and sex do not require great attention to definitions
of protected categories, nor do they necessarily limit protections only
to particular racial or gender groups. Thus, so-called
"reverse-discrimination" claims by members of majority race or gender
groups are possible. Race and gender discrimination laws generally call
for race- or gender-neutral approaches to achieve equality. These civil
rights laws generally do not call for affirmative race- or
gender-specific remedies.

In contrast, disability is commonly understood to be more than a
social, or socially constructed, difference. Disability civil rights
laws recognize that barriers facing people with disabilities are not
merely attitudinal, but are incorporated into the built environment,
communication mechanisms, and otherwise neutral policies. Our legal
system presumes that equality based on disability cannot be achieved
through identical treatment. Thus, disability rights laws often require
disability-specific responses, such as reasonable accommodations, policy
modifications, auxiliary aids, and physical changes to facilities.
Therefore, in order to avoid creating rights to "special" or
"preferential" treatment for people who do not need it, disability
civil rights protections have generally been limited to people who fall
within the legal definition of persons with disabilities; the coverage
is always for a discrete class of persons. The definition of disability
has, therefore, been the subject of much litigation and debate.

However, more recently, policymakers have begun to re-examine the
need for a narrow definition of the protected group, recognizing that
unfair discrimination on the basis of disability should be prohibited,
not just for people with severe disabilities, but for people with all
levels of disabilities. Thus, both individuals with severe disabilities,
such as blindness, and individuals with less severe disabilities, such
as near-sightedness, should be protected from impairment-based exclusion
or other discriminatory treatment. Moreover, because the
disability-specific remedies (e.g. accommodation, auxiliary aids)
envisioned are limited by "reasonableness" and "effectiveness,"; the
eligible group does not need to be limited. The "reasonable" or
"effective" response to a minor impairment will, by definition, be
minor. As a result, federal disability law has been amended effective in
2009 to de-emphasize the importance of the definition of disability.

Another difference from race and sex civil rights laws is the level
of emphasis on qualification. Women and/or people of color rarely have
to demonstrate that their sex or race does not make them unqualified to
perform a particular job. However, there is less of a presumption with
disability that differential treatment is inherently discriminatory.
Therefore, disability civil rights statutes generally require
individuals with disabilities to demonstrate that they are qualified for
the position at issue. That is, where disability discrimination in
employment is at stake, plaintiffs typically need to do more than
demonstrate that they were treated differently based on disability. They
must also establish that the disability does not, in fact,make them
unqualified or incapable of performing the work in question. Disability
civil rights litigation, therefore, can require fairly complex
assessments of the relationship between the limits and skills of a
person with a disability, and the particular nature and structure of a
position or workplace.

In addition to the definitions of disability and qualification, the
concept of "reasonable accommodation" is particularly critical to
disability civil rights, as it indicates that in order for equality to
be achieved,institutions will often need to offer people with
disabilities different options or resources, in order to arrive at like
outcomes. Not all disabilities require accommodation; disability
discrimination can also occur based on particular discriminatory or
negative treatment. However, the failure to accommodate is often a
primary area of contestation in disability civil rights claims. As a
result, in drafting or implementing disability civil rights laws,
policymakers must consider how to define what constitutes an
accommodation and what is reasonable or an undue burden (as well as
which party must prove reasonableness or burden).

The next part reviews a number of core elements of disability civil
rights law, including both the definitions and frameworks that allow
individuals to prospectively secure legal protection as persons with
disabilities, and the thresholds and processes individuals must meet in
order to demonstrate that they are qualified or capable of performing as
employees,and that any needed accommodations are in fact "reasonable."

For an employer or licensing agency, because of an individual's ...
disability, [or]predisposing genetic characteristics, ... to refuse to
hire or to bar or to discharge from employment such individual or to
discriminate against such individual in compensation or in terms,
conditions or privileges of employment.12

. . . .

3. (a) It shall be an unlawful discriminatory
practice for an employer ... to refuse to provide reasonable
accommodations to the known disabilities of an employee, prospective
employee or member in connection with a job or occupation sought or held
or participation in a training program. 13

The NYSHRL covers "employers" with as few as four employees. 14 Small businesses with three or fewer employees are
not subject to the legal requirements discussed in this paper. By
contrast, the federal ADA only covers employers with 15 or more
employees. 15 Coverage of small employers is
important, because businesses with fewer than 20 employees employ nearly
22 million Americans (18% of the workforce). 16
Very small businesses (with fewer than 10 employees) employed 15.9
million people in 2003. 17 Over half of all
employers in the United States (3.9 million) in 2003 had fewer than 5
employees. 18 73% of employers (5.3 million) had
fewer than 10 employees. 19 New York's employment
picture is similar, with nearly 60% of businesses having fewer than 5
employees and 77% having fewer than 10 employees. 20
The state legislature is currently considering bill A4648 21,which would apply the NYSHRL to all employers,
rather than to those with at least 4 employees, excepting those
businesses where at least 2/3 of those employed are family members.

NYSHRL, unlike the ADA, does not go into detail in its definition of
employer or employee, except to state that an individual employed by his
or her parents is not considered an "employee." 22
NYSHRL also covers licensing agencies, employment agencies, and labor
organizations.

New York's conceptions of disability, discrimination, and reasonable
accommodation are, in many respects, similar to federal disability law,
as represented by the Americans with Disabilities Act (ADA). 23 However, there are differences as well. The
following sub-sections review the definitions of disability (i.e. which
individuals are protected), reasonable accommodation, and the related
concept of "undue hardship," discriminatory actions, defenses to the
charge of discrimination, burdens of proof, complaint procedures, and
forms of relief available.

Individuals Protected

Disability

The NYSHRL defines disability in this way:The term "disability" means (a) a physical, mental or medical impairment resulting from
anatomical, physiological, genetic or neurological conditions which
prevents the exercise of a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing
with employment, the term shall be limited to disabilities which, upon
the provision of reasonable accommodations, do not prevent the
complainant from performing in a reasonable manner the activities
involved in the job or occupation sought or held.24

There are several points worth noting about this definition of
disability. First, for the purposes of qualifying for legal protection,
"disability" can mean any one three things:

Having an actual impairment;

Having a history of an impairment, for instance a prior history of
mental disability or illness, which though no longer present, is the
reason for current discrimination; 25

Being perceived as a person with a disability, based on some
existing condition or difference that may not actually be an impairment.

In other words, a person can qualify for disability legal protections
based on actually having a disability, having had a disability in the
past, or being perceived to have a disability by others. This is the
approach taken by the federal disability rights laws, as well as
numerous states that have disability rights laws.

For purposes of civil rights, disability can be defined either
through a medical model (based on medical diagnosis) or through a
functional model (based on actual effect of the impairment on a person's
life) or through a combination of the two. The disability rights
community has questioned the validity of medical approaches, which have
traditionally empowered health care providers to make decisions for
people with disabilities and have traditionally been used in public
benefits programs as a means to limit eligibility. Advocates have
argued, successfully, that restrictive medical definitions used as
gatekeepers for benefits are inappropriate for use in determining civil
rights protections. 26 The NYSHRL protects
individuals with actual impairments that either (1) prevent a
normal bodily function or (2) are medically diagnosable. Thus, it
offers coverage based on either a functional or a medical approach. The
federal ADA has taken a primarily functional approach, focusing on
whether the person's impairment "substantially limits" one or more
"major life activities." 27 Prior to 2009, courts
interpreted the ADA to set a challenging standard that people with
disabilities must meet in order to qualify for legal protection.
Therefore, under federal law, it is not sufficient to have an
impairment, even if that impairment is a basis for discriminatory
treatment. A person must still prove that the impairment is"substantial"
enough that it inhibits a major life activity.

However, the ADA Amendments Act of 2008 (ADAAA) adds a medical
element by adding "major bodily functions" to the category of major life
activities. 28 The ADAAA has also expanded the
federal definition of disability to reduce the "substantial limitation"
standard and provide broader protection. This makes the amended federal
law more similar to the NYSHRL's protection for people who have an
impairment that "prevents the exercise of a normal bodily function." The
Equal Employment Opportunity Commission and the federal courts have not
yet established the boundaries of the ADAAA definition of disability.
However, the ADAAA provides that "substantial limitation" should be
interpreted to provide broad protection,thus rejecting previous judicial
interpretations, and that courts should focus on whether discrimination
occurred, rather than on whether the plaintiff meets the legal
definition of disability.

In contrast, to access legal protection in New York, the minimum
standard is simply to have an impairment that can be medically
diagnosed, or that prevents some "normal" bodily function. 29 Even if the impairment does not limit a "major"
life activity, a person can still qualify for legal protection in the
state of New York. Under the ADA, prior to the 2008 amendments, bodily
functions were not considered to be major life activities. Courts
applying NYSHRL have been willing to recognizing diagnosed medical
conditions as disabilities, even where employers attempt to argue that
the medical condition does not constitute a significant impairment. 30 For instance, when employers have attempted to
assert standards grounded in the ADA, such as "substantial" limitations
on "major" life activities, courts have affirmed that these definitions
are stricter than New York legal requirements,and do not apply under the
NYSHRL. 31 In addition, courts have found that
where a plaintiff has established a disability under the ADA, this
presumptively meets the less strict standards present under the NYSHRL. 32 Thus, the NYSHRL still appears more inclusive than
the ADAAA, as it allows for any "normal" bodily function,without the
need to demonstrate that it is "major."

However, in applying the definition of an actual impairment based on a
medically diagnosable condition, courts applying the NYSHRL sometimes
require an explicit medical diagnosis underlying the impairment, even
where it is not disputed that an individual is having difficulty
participating in some physical action or activity, but the specific
medical reason for the impairment has not yet been diagnosed. 33 This demonstrates one of the drawbacks of a
medical approach to the definition.In practice, this means that access
to legal protection may in some instances be dependent on access to an
adequate quality of medical care. This poses particular barrier for some
people with disabilities, because people with disabilities have
disproportionately limited economic resources, and corresponding
limitations in access to adequate quality of healthcare. 34 In addition, some health care insurance policies
(including pre-existing condition exclusions) have traditionally limited
access to health care for people with disabilities.

Genetic Conditions

NYSHRL explicitly acknowledges that genetic conditions can be
disabilities, and creates a related protection based on a "predisposing
genetic characteristic." 35 This references a
condition that may not be a disability or disease as yet, but is
believed to be associated with a risk of developing either a physical or
mental disability or disease. 36 A genetic
predisposition can be demonstrated by genetic testing or "inferred from
information derived from an individual or family member that is
scientifically or medically believed to predispose an individual or the
offspring of that individual to a disease or disability, or to be
associated with a statistically significant increased risk of
development of a physical or mental disease or disability." 37 For instance, if a person were to be discriminated
against based on a family history of schizophrenia that is medically
believed to be genetic, he or she would qualify for legal protection,
even without any existing illness or impairment. In other words, in
addition to recognizing current impairments,past impairments, or being
perceived by others to be impaired, New York also offers protection to
people who may develop a future disability, based on a genetic
characteristic. In this regard, New York goes beyond federal disability
civil rights law, as embodied in the ADA. However, it is comparable to
the more recently passed Genetic Information Nondiscrimination Act of
2008 (GINA), which provides federal legal protection for unmanifested
genetic conditions. 38

Qualification

While New York is more inclusive in its definition of disabilities
than the federal law, New York has a special limitation in the
employment context. As the statute notes: "the term [disability] shall
be limited to disabilities which, upon the provision of reasonable
accommodations, do not prevent the complainant from performing in a
reasonable manner the activities involved in the job or occupation
sought or held." 39 In other words, legally a
disability is only a disability for the purposes of an employment
discrimination claim if a person is able to perform the job with any
needed reasonable accommodations. The ADA has no such exclusion;
whether a disability is recognized as a disability does not depend on
whether a person can do a given job. However, the ADA accomplishes
essentially the same outcome,by requiring plaintiffs to establish that
they are qualified to do the job, wi thor without reasonable
accommodation. 40 Although the federal and
state laws are different in their definition, in practice, the result is
likely to be the same: people with disabilities must demonstrate that
they are qualified to do a job with reasonable accommodations,or a
discrimination claim will be unsuccessful.

It should still be acknowledged that there is at least a technical
difference between the two. If a person cannot demonstrate that he or
she is qualified to do a job, once accommodated reasonably, under
federal law this means the person with a disability did not experience
unlawful discrimination. Under the NYSHRL, this means a person is, at
least in the employment context, not a person with a disability.

The NYSHRL requires a person with a disability to be qualified to
perform "the activities involved in the job" "in a reasonable manner." 41 The NYSHRL does not provide specific guidance for
determining when a person is qualified to perform a given job, beyond
indicating that an employee should be able to perform a job in a
reasonable manner, either without or without reasonable accommodations. 42 In contrast, the ADA bases qualification on
whether a person can perform the "essential functions" of a job with or
without accommodation. 43 The ADA provides some
deference to employers in defining what the essential functions are, for
instance, based on a published job description. 44
While the language varies, there is no indication in this
instance that either standard or framing is, in practice, more or less
protective of workers with disabilities.

Association

The ADA recognizes that family members,caregivers, and other
associates of people with disabilities are often subjected to
discrimination because of their relationships. For example,employers may
be unwilling to hire a parent or spouse of a person with a disability
because of assumptions that the parent or spouse will take too much time
off to care for the person with a disability. 45
Therefore, the ADA protects people from discrimination on the basis of
association with a person with a disability. 46
The NYSHRL currently does not provide for protection based on
association with a person with a disability, meaning that if an employee
is discriminated against based on a relationship to a person with a
disability (such as a family member), there is no basis to pursue a
discrimination claim. 47

Bill A6333 would amend the NYSHRL to add "family responsibilities" as
a protected class, such that the law would prohibit discrimination
based on: "age, race, creed, color, national origin, sexual orientation,
military status, sex, disability, family responsibilities, predisposing
genetic characteristics, or marital status." 48
The definition of family responsibilities, however, is limited only to
"the legal responsibility to care for a child." 49
Therefore, even the prospective amended NYSHRL would provide no
protection for other family relationships, such as individuals caring
for spouses or aging parents. Nor would it protect people from
discrimination on the basis of non-family or non-care giving
relationships. Thus, the roommate of a person with HIV would not be
protected when turned down for a job because the employer is afraid of
infection. Although the federal Family and Medical Leave Act provides
rights to unpaid job-protected time off for employees of companies with
50 or more employees, 50 neither federal nor New
York (current or proposed) law provides rights to employment
accommodations to support caregivers, such as flexible scheduling to
meet family medical appointments, or telecommuting/telework, 51

Reasonable Accommodation

The NYSHRL requires employers to provide reasonable accommodations
for the known disabilities of employees and applicants. 52 The NYSHRL has a definition of "reasonable
accommodation:"

The term "reasonable accommodation" means actions taken which
permit an employee, prospective employee or member with a disability to
perform in a reasonable manner the activities involved in the job or
occupation sought or held and include, but are not limited to, provision
of an accessible worksite, acquisition or modification of equipment,
support services for persons with impaired hearing or vision, job
restructuring and modified work schedules;provided, however, that such actions do not impose an undue
hardship on the business, program or enterprise of the entity from which
action is requested.53

The definition is intentionally broad, in acknowledging a few common
examples, but not trying to create a comprehensive list of what
accommodations are reasonable. This is important, because given the wide
variation of disabilities in existence, even a very thoughtful or
lengthy list of possible accommodations likely would fail to anticipate
what individuals with disabilities may need.

In order to be considered reasonable under the NYSHRL, the
accommodation must be effective, meaning that it should enable the
employee to accomplish needed tasks, and should be appropriate to the
disability. 54 Where an employee develops or
discloses a disability, and the employer terminates an employee before
allowing the employee to pursue or secure an accommodation, the employer
may prevail, if it can demonstrate that, had the accommodation been
provided, it would not have been effective. 55
There is no consistent standard among the New York courts for
determining what a "reasonable manner" entails; however, some courts
have resorted to the ADA,suggesting that the standard should be the
same. 56

Under the ADA, if an employee can perform a job with or without
reasonable accommodation, then s/he is "qualified" to do the job. If an
employee develops a disability which interferes with performance of
essential job functions, even with accommodation, then the employer may
not be liable for taking an adverse action such as termination, because
the employee is no longer qualified. However, the ADA also provides that
when an employee becomes unable to perform at a job s/he was previously
able to manage,the duty to accommodate also includes reassignment of
the employee to a vacant position that the employee is qualified for,
before considering termination. 57 As yet, the
NYSHRL is silent on to what extent reassignment is required.

A recent, influential appellate court decision, Phillips v. City
of New York, interpreted the requirement of reasonable
accommodation to allow up to a year of medical leave, even if an
employee is unable to perform job tasks during that period, as long as
the medical leave will enable the employee to work in the future. 58 In addition, the Phillips court asserted
that it is the employer's responsibility under the NYSHRL to make an
individualized inquiry and tailor the accommodation to the employee's
needs. 59 Previously there had been no
consistent expectation that employers have a duty to engage in an
"interactive process" under the NYSHRL. The interactive process has
become a normal expectation that federal courts apply to discrimination
claims under the ADA. 60 The interactive process
places a shared responsibility on employers and employees, once an
employee requests an accommodation, to collectively assess the
interaction between employee limitations and job requirements, identify a
range of possible reasonable accommodations and assess their
functionality and effectiveness, and find a mutually agreeable option. 61 The interactive process, therefore, creates an
obligation for employers to be pro-active and collaborative in
attempting to find a working solution.

According to the Phillips court, failure to engage in the
interactive process is a violation of the NYSHRL. 62
As under the ADA, that violation will prevent an employer from
succeeding on a motion to dismiss or for summary judgment. However,
whether an additional remedy will be available depends on whether the
court finds that a reasonable accommodation was available. 63

Discriminatory Actions

The definitions of "unlawful discriminatory acts" contained in the
NYSHRL are largely comparable to the ADA. The NYSHRL indicates that an
unlawful discriminatory practice occurs when an individual employee is
subjected to any of the following on the basis of disability:

Denial of Work: Firing, laying off, or refusal to hire; 64

On-the-Job Discrimination: Different/negative treatment compared to
other employees relative to salary or compensation, benefits, or other
"conditions or privileges of employment" (such as opportunities for
advancement); 65

Retaliation: Discharging or in any way discriminating against an
employee who opposes an unlawful discriminatory practice, or who files a
complaint under the NYSHRL; 66

Failure to Accommodate: Refusing to provide a reasonable
accommodation. 67

Additionally, employers, labor organizations and employment agencies
maybe held responsible for discrimination in access or admission to
training or apprenticeship programs, or if reasonable accommodations are
denied within those programs. 68

Defenses

Nothing contained in this subdivision shall be construed to
require provision of accommodations which can be demonstrated to impose
an undue hardship on the operation of an employer's ... business, program
or enterprise. In making such a determination with regard to undue
hardship the factors to be considered include:

The overall size of the business, program or enterprise with
respect to the number of employees, number and type of facilities, and
size of budget;

The type of operation which the business, program or enterprise
is engaged in,including the composition and structure of the workforce;
and

The meaning of undue hardship under the NYSHRL is similar to federal
disability law, focusing on the nature and cost of the accommodation,
the type and nature of the work the employer performs, and the size and
organizational budget of the employer. 70
For instance, accommodations are less likely to be considered
reasonable if they are very costly relative to the organizational
budget, or require drastic changes to the organizational structure or
purpose. Accommodations that alter specific policies or norms for
individuals with disabilities, but which do not significantly affect the
whole structure of the workplace or its purpose, likely will be found
reasonable. 71

While the ADA contains explicit statutory language establishing what
defenses will excuse an employer from liability for discriminatory
action, the NYSHRL is not similarly constructed. The ADA provides that
denying a job or benefit to a person with a disability based on
qualification standards can be found lawful where it is "job-related and
consistent with business necessity." 72 Although
the NYSHRL does not discuss defenses as such, relatively similar
outcomes are achieved, in that a plaintiff has the burden of
establishing that s/he can perform the normal job functions, with or
without accommodation.

The ADA further provides that qualification standards may include
being able to work without posing a "direct threat" to health or safety
of others. 73 This has been interpreted by the
EEOC and the U.S. Supreme Court to disqualify individuals for whom
performing a particular job poses a direct threat to himself or herself.
74 The NYSHRL does not have explicit language
comparable to the ADA, on the issue of posing a direct threat to health
and safety. 75 The NYSHRL provides that evaluation
of the performance of work in a "reasonable manner" is contingent on
employees receiving any needed reasonable accommodations. 76 New York courts have held that where an employee
may pose a safety or health risk, employer action, such as terminating
the employee, may not violate the NYSHRL. 77

Burdens of Proof

Plaintiffs bear the burden of proving that they are protected under
NYSHRL. 78 Plaintiffs also bear the burden of
demonstrating that they are able to perform in a given position, in a
reasonable manner with accommodations as necessary.In this regard, New
York operates similarly to the ADA. 79

When pursuing a claim for disability discrimination under the
NYSHRL,plaintiffs also bear the burden of demonstrating that negative or
discriminatory treatment occurred because of the plaintiff's
disability. Elements of this burden include:

Demonstrating that the employer was aware of the disability's
existence

Demonstrating that a discriminatory reaction to disability, rather
than legitimate non-discriminatory reasons, motivated the employer's
behavior. 80

Where an employer asserts that a legitimate non-discriminatory reason
for its behavior exists, the plaintiff must demonstrate that this
assertion is a pretext. 81 For instance, the
employee must demonstrate that disability was the primary or controlling
reason why the employer refused to hire, retain, promote, or otherwise
treat the employee fairly. When the charge of discrimination involves
retaliation, whether for resisting discriminatory treatment, or for
pursuing a complaint under the NYSHRL, the employee must demonstrate
that the employer's action was motivated primarily by a negative
reaction to the employee's exercise of his or her human rights. 82 Finally, when the form of discrimination is the
failure to provide reasonable accommodation, a plaintiff can demonstrate
that the employer engaged in discrimination by establishing that the
accommodation was requested, that it was reasonable and/or that the
employer refused or failed to engage in the interactive process.

Administrative Enforcement

The NYSHRL established a state-wide Division of Human Rights. 83 When an individual experiences discrimination,
s/he has the option to file a written complaint with the Division in
order to begin a state investigation of the complaint. 84
Although the Division has jurisdiction over non-employment cases,
employment discrimination cases constitute the majority (83.4% in
2007-2008) of cases brought before the Division. 85
In 2007-2008, 27.6% of the approximately 7000complaints heard by the
Division involved a disability discrimination claim. 86

Division Process

Complaints with the Division must be filed within one year of the
alleged discriminatory practice. 87 Once the
complaint is filed, whether by the person who has experienced the
discrimination, or by an attorney acting on his or her behalf, the
following process begins.

Notification and Investigation: The Division will communicate
promptly with the person or employer accused of disability
discrimination and with any parties witnesses, and proceed with an
investigation of the charges in the complaint. 88

Dismissal or Proceeding: Within 180 days after the complaint is
filed, the statute indicates that the Division will complete its initial
investigation, and decide whether to dismiss the complaint. The
complaint will be dismissed if 1) the Division does not have
jurisdiction to hear it, or 2) the investigation does not find that an
unlawful discriminatory practice has occurred. 89
The Division might not have jurisdiction to hear a complaint, for
instance, if the complainant is a New York resident, but the
discriminatory act did not take place in the State of New York. However,
it should be noted that a recent decision in Hoffman v. Parade
Publications has expanded the scope of the Division and the NYSHRL
to cover out-of-state employees of New York employers. 90

Conflict Resolution: The Division may attempt to resolve the problem
by conciliation. 91 While this step will usually
proceed after the investigation phase is completed, the Division may
commence a conciliation process at any point after the complaint is
filed. Conciliation is generally conducted by a division investigator or
prosecutor, rather than by a distinct mediation program. If an
agreement is reached through conciliation, it must include a commitment
from the employer to cease engaging in the discriminatory acts. 92 It may include other agreements between the
parties designed to remedy the harm caused by discrimination. 93 If an agreement is reached, the Division will
provide the parties with a written order confirming the terms that must
be met. 94 Within one year of the written
order, the Division will investigate to make sure that the terms of the
order are being met, and can take action to enforce compliance if they
are not, including imposing up to one year of jail time and/or a $500
fine. 95

Hearing: If conciliation has not been attempted, or has been
unsuccessful, the Division usually will proceed to a hearing at the
Division offices within 270 days after the complaint was filed. 96 In the hearing, complainants may generally be
represented by their own attorney or if they do not have an attorney, a
Division-appointed prosecutor will advance the claim. 97
However, in the latter instance, the prosecutor represents the state,
not the complainant.

If a complaint was dismissed by the Division either for lack of
jurisdiction, or for lack of cause, the complainant can appeal this
decision through the New York state court system. The court can overrule
the Division and order a hearing. 98 If this
occurs, the Division must proceed to a hearing within 120 days of the
court order. 99

Resolution: Based on the findings of the Division at its hearing,
the Division may order a variety of remedies, discussed further in the
next section.

Some states and the ADA make the administrative complaint process a
gate-keeping function. Under the ADA, a legal claim cannot proceed in
court until the Equal Employment Opportunity Commission (EEOC) issues a
"right to sue letter" or until the agency has completed its internal
processes, at which point a person can appeal that decision in court. 101 Workers in New York, however, have the benefit
of access to either the state courts or the Division of Human Rights. It
is possible to bypass the Division entirely if a trial is preferred.
The only limitation is that a person cannot pursue both options
simultaneously - it is not possible to go to trial, while also awaiting a
hearing or entering conciliation through the Division of Human Rights. 102

There are some reasons why pursuing a complaint through an
administrative process may be preferable to a judicial filing. For
instance, it generally is easier to represent oneself through
administrative complaint processes than to proceed without an attorney
in court. In addition, the agency bears the cost of investigation and
hearing, whereas going to court involves court costs and attorneys'fees,
which cannot be recovered from the losing party in NYSHRL employment
claims. 103

On the other hand,filing a complaint with the Division of Human
Rights must be accomplished within one year, 104
whereas the statute of limitations to file an employment discrimination
claiming a state court is three years from the originating incident. 105 In contrast, the EEOC requires that a complaint
first be filed within 180 days of the discriminatory incident, although
that deadline can be extended to 300days where a claim is based on
violations of both federal and state disability civil rights laws. 106 Regardless, the NYSHRL allows for more time
than that available for ADA claims,both for Division complaints and
lawsuits.

Division investigators, prosecutors and hearing officer staff receive
initial training on requirements for reasonable accommodation and
interactive process, and have options to receive ongoing continuing
legal education on disability. 107 However,
the Division does not otherwise allocate or orient staff as disability
specialists. 108

Division Results

Although the statutory deadline for completing investigations is 180
days, in practice, the median time for investigation and determination
is 244 days. 109 Currently, 11% of
disability complaints receive a probable cause determination, allowing
the complainant to proceed further. Relative to disability employment
discrimination claims, this indicates that roughly 200 claims per year
are resolved by the Division, and 1700-1800 are dismissed. 110 Probable cause determinations for disability
complaints in the investigation phase are slightly higher than for other
forms of discrimination (11% as compared to 9% for all complaints). 111The majority (63%) of those disability cases
with probable cause determinations are settled before or during the
hearing process. 112 25% of disability cases
with a probable cause determination result in a completed trial. Of
those that do proceed through trial, 12% of disability claims result in a
favorable result for the complainant, as compared to approximately 20%
of all complaints. 113 In comparison, at the
national level, the Equal Employment Opportunity Commission is
substantially less likely to find "reasonable cause" in disability
investigations (5.1% in 2009 as compared to 11% at the state level). 114 But for those complainants who are able to
proceed to hearing, the win rate is much higher (over 40%, as compared
to 12%).

The approximately200 disability employment cases pursued by the
Division in fiscal year2009-2010 resulted in $358,683 in monetary awards
to complainants ($254,450 via settlement during the investigation
phase, and an additional $54,233 via hearings). 115
In 50 cases, complainants received a benefit. 116
In 31 instances, complainants received an offer of employment, and
another 23 received improved employment conditions. 117
In 2 instances, complainants received a disability accommodation.
Remedies provided by the Employment Opportunity Commission are largely
comparable, with the exception that monetary awards through the EEOC are
on average, substantially higher than those awarded through the
Division; of 4,244 complainants who received a merit resolution, the
EEOC awarded $67.8 million in fiscal year 2009-2010. 118
Specifically, damages at the national level were on average, 9 times
higher when weighed proportionate to the number of complainants.

The Division is empowered similarly to the federal EEOC, to engage in
pro-active/impact litigation, where the discriminatory practices of a
particular employer merit state intervention. Since about 2008, the
Division has had a Deputy Commissioner for Division Initiated
Investigations. The Division has used this power approximately 13 times
since 2008 against private and local government employers, but not in
the context of disability. 119

Forms of Relief

Forms of relief available through the Division of Human Rights, and
through the state courts are the same. 120
They include:

Requiring that the employer take actions to remedy the harm, such as
hiring or reinstating a worker, or providing a promotion, back pay,
admission to a training or apprenticeship program, requested
accommodations, and access to advantages, privileges, rights, or
resources enjoyed by other employees. Other actions to remedy the harm
may be granted as deemed appropriate by the court or the Division; 122

Awarding compensatory damages to the person with a disability to
cover any losses suffered as the result of discrimination. Note that the
NYSHRL allows compensatory damages, but not additional punitive damages
(i.e., damages beyond the losses suffered, as punishment for the
discrimination) in employment discrimination cases; 123

In addition to the relief available to individual people with
disabilities who experience discrimination, the court or the Division
may require that an employer, who has financially gained from the
discriminatory action, turn those profits over to the state. 125 The court or the Division may assess additional
fines to be paid to the state,up to $50,000, and up to $100,000 in
cases where the discriminatory behavior is found to be particularly
extreme or malicious. 126

The NYSHRL differs from the ADA, in that it does not establish caps
on damages, meaning that there is no statutory maximum amount provided
for compensatory damages. 127 In contrast, the
ADA limits damages to between $50,000 and $300,000 depending on the size
of the employer. 128 However, unlike the
NYSHRL, the ADA allows punitive damages (subject to the caps on
damages). 129 In addition, the NYSHRL currently
does not allow recovery of attorney's fees for the prevailing party. 130

Alternate Procedures Available to Employees of State Agencies

The New York State Department of Civil Service provides for an
additional resource for employees with disabilities,where the employer
is a state agency. If a state agency employer denies are quest for
disability accommodation, an employee may request external review by a
Compliance Review Board. 131 Compliance Review
Boards are composed of heads or authoritative representatives of other
state agencies. The Boards have no enforcement powers; they may not
order any action or provide remedies. Their sole function is to review
the accommodation request, and make a recommendation to the specific
state employer in question. 132 However,
should a state employer choose to ignore a recommendation in favor of
the employee, the finding by the Compliance Review Board may be useful
to the employee, as part of the evidentiary basis presented to the Human
Rights Division, or in litigation. The decision to access the
Compliance Review Board is optional, and does not preclude
simultaneously pursuing a complaint under the NYSHRL. However, it may be
of particular use to employees who wish to attempt to resolve an
accommodation dispute, before pursuing other legal action.

Employees who are civil servants of the State of New York, including a
variety of government employees, and for instance, public school
teachers, are subject to special laws related to disability and the
right to work. The New york Comprehensive Codes of Rules and Regulations
(NYCRR) establishes procedures related to employees who take voluntary
sick leave. 133 The NYCRR provides that if an
employee takes sick leave based on disability or illness, an employer
may prevent that employee from returning to work until the employee
submits to an examination by a physician designated by the employer. 134 The examination must determine both whether the
employee is fit to perform job responsibilities, and whether the
employee poses any health or safety threat to others. It should be noted that requiring medical
evidence of fitness to work in these circumstances is not necessarily a
precluded activity under the ADA, which permits employers to require
medical examinations of employees if they are job related and consistent
with business necessity, 136 including when the
employer has a reasonable belief based on objective evidence that the
employee is unable to perform the essential functions of the job or may
pose a direct threat. 137 The more unusual facet
of the civil service statute is the exclusive right,accorded to the
state, to determine the choice of examining physician. 138 There is a potential for abuse of these laws
where the employer has exclusive discretion over the choice of medical
evaluators. In other words, if a state employer were invested in
terminating an employee who had a legitimate right to reasonable
accommodation, misuse of the forced medical evaluation requirement may
serve as a pretext for disability discrimination. 139

Section 72 of the New York Civil Service Law ("Civil Service
Law")establishes procedures to allow state employers to place employees
on involuntary leave, on the basis of medical condition that could
affect fitness to work. 140 This can be
accomplished in one of two ways: a) if a medical examination with a
physician of the employer's choosing certifies that the employee cannot
perform the job duties, 141 or b) an employer
may place employees on involuntary leave without an examination, upon
finding cause to believe that the employee poses a threat to the health
and safety of others. 142 The Civil Service Law
establishes an exemption for employees whose disability was caused by an
occupational injury or disease under the workers compensation laws. 143 Employees may access an appeal process within
one year of placement on involuntary leave, in which they may request a
new medical examination, again with a physician of the employer's
choice. 144 If the employee is found to be
physically and mentally fit, s/he has the right to be reinstated. 145
Civil Service Law Section 73 establishes that once an employee has
been placed on involuntary leave under Section 72 for at least one year
and not re-instated, the employer may terminate the employee
permanently. 146 Within one year of
termination based on disability, the former employee has the right to
request a new medical examination, with a physician of the employer's
choice. 147 If the former employee is found
fit to return to work, s/he may be reinstated if the position is vacant,
or to a similar or lower-level vacant position, or else will be put on a
"preferred list" for future vacancies. 148

The NYCRR and the Civil Service Laws may operate together, in that
once a person has been denied return to work under the NYCRR, following
voluntary medical leave, courts have determined that he/she can then be
placed on defacto involuntary leave, and the Civil Service Laws then
apply, meaning that under Section 73, the employee can be permanently
terminated one year later. 149 However,
in another instance, a state court found that when an employee was
terminated after being found unfit to return to work following voluntary
leave under the NYCRR, the employee did not have the right to appeal
the physician's finding before he was terminated, as he would have under
Civil Service Law Section 72, despite the fact that his leave had
become involuntary. 150 While the relationship
between the laws is not always consistently interpreted by the courts,
either can be a basis for termination based on disability.

There have been limited attempts to use federal or state civil rights
laws to challenge disability-based terminations under the Civil Service
Law. 151 However, it is not clear that the
New York Civil Service system complies with the ADA or NYSHRL, both of
which provide for leave time as a reasonable accommodation and both of
which would appear to require reinstatement upon return to work.

In sum, the Civil Service Laws give government employers a high level
of discretion in determining whether employees are fit to work with
disabilities or medical limitations. There is some concern that, because
the state agencies are "repeat customers," such employer-chosen medical
providers may be more inclined to find employees unfit for work than
necessary. It should be acknowledged that in practice in some, though
not all, civil service sectors,the employer who orders a medical
examination may be a smaller part of a larger state agency. In these
instances, the choice of physician will not actually be up to the
employee's direct supervisor, and will be determined by a regional or
umbrella entity, such as Civil Service Department Health Services. 152 This organizational distance may reduce the
likelihood that an immediate supervisor or employer would be able to
bias or exploit the medical examination process unfairly. However, in
the event that an employee believes an employer's decision is unfair or a
medical review is not accurate, the statutes provide limited prospects
for appeal. Employees may introduce external medical evidence in appeals
processes before a court, but as noted above, courts have repeatedly
found for employers, even where employees presented their own medical
evidence.

As a point of comparison, it is notable that worker's compensation
processes in New York do, in contrast, allow workers to qualify for
benefits, based on their own choice of physician. 153
An insurance carrier may also order an independent medical review, but
the worker's self-selected physician is not presumptively less credible
in any appeals or hearings. According to the EEOC, under the ADA, an
employer may only require an employee to submit to an employer-chosen
medical review if the employee provides insufficient documentation of
disability for a reasonable accommodation. 154
However, an employer may insist on its own choice of physician for
purposes of determining whether an employee poses a direct threat. 155

New York City's Human Rights Law 156
provides:16. (a) The term "disability" means any physical, medical, mental
or psychological impairment, or a history or record of such impairment. (b) The term "physical, medical, mental, or psychological
impairment" means:(1) An impairment of any system of the body; including, but not
limited to: the neurological system; the musculoskeletal system; the
special sense organs and respiratory organs, including, but not limited
to, speech organs; the cardiovascular system; the reproductive system;
the digestive and genito-urinary systems; the hemic and lymphatic
systems; the immunological systems; the skin; and the endocrine system;
or(2) A mental or psychological impairment.(c) In the case of alcoholism, drug addiction or other substance
abuse,the term "disability" shall only apply to a person who (1) is
recovering or has recovered and (2) currently is free of such abuse, and
shall not include an individual who is currently engaging in the
illegal use of drugs, when the covered entity acts on the basis of such
use.157. . . .

The City law is similar to the NYSHRL in multiple respects. Like the
NYSHRL, the City law covers employers with as few as four employees. 158

However, it differs in several significant ways. First, unlike the
state law, the City law acknowledges any physical, medical, mental or
psychological impairment; it does not contain a requirement that a
disability be demonstrable by "medically accepted techniques," or affect
a normal bodily function. 159 Like the
NYSHRL, the City law also acknowledges past history of
impairments,although it is not explicit on the issue of perception of
impairment. The City law is more inclusive than the NYSHRL (or the ADA
or ADAAA) because it does not make medical diagnosis or functional
limitation a pre-requisite for legal protection. In interpreting
the City law, the New York City Supreme Court has recognized gender
identity disorder asa disability, 160 which is
not covered under the ADA. 161 In each
of these respects, New York City Law is comparatively expansive in its
inclusion of a range of disabilities, and its presumptions in favor of
plaintiffs with disabilities, as compared to state and federal
disability civil rights laws.

The New York City Law, as interpreted by the court, also differs in
that it places the burden on employers to prove that the employee is not
qualified to perform the job, as compared to the NYSHRL, which places
the burden on an employee to prove that s/he is qualified with or
without reasonable accommodation. 162 This
placement of the burden of proof recognizes that the employer is in the
best position to know the real needs of the job and to know what
accommodations are possible and reasonable. An applicant or employee
presumably will have less knowledge of the details of the position and
the reasons for its existence, as well as of what technologies and other
accommodations are available.

Like NYSHRL, the City Law creates a Commission and procedures for
complaint investigation, mediation, and administrative enforcement, as
well as judicial enforcement. 163 In
addition to similar functions to those performed by the State Human
Rights Division, the City Commission has a testing program to detect
employment discrimination, based on race and gender, though not
disability as yet. 164 The program uses pairs
of applicants with matching qualifications but differing racial or
gender characteristics, in order to determine whether employers are less
likely to hire based on a demographic difference. Because employers
generally do not give applicants with disabilities a reason for not
hiring them, discrimination in hiring is very difficult to prove.
Therefore, testing programs like these are essential to identify and
prove discrimination in hiring of people with disabilities. Disability
rights testing programs have successfully been conducted in the context
of housing. 165

Like the ADA, but unlike the state law, the New York City Law allows
for recovery of attorney's fees. 166 Like the
state law, it allows for unlimited recovery of compensatory damages,but
unlike the state law, it also provides for punitive damages. 167 Unlike the ADA, the City Law does not place any
caps on recovery of compensatory or punitive damages. The City Law also
provides for civil penalties up to $125,000 as needed in the public
interest, or up to $250,000 for willful, wanton, or malicious
discrimination. 168

Numerous states share with New York a commitment to a more expansive
definition of disability than the standard of a "substantial limitation
of a major life activity" posited in the ADA. Minnesota, for instance,
defines disabilities as conditions which "materially limit" a "major
life activity." 169 Like the ADA requires that
an impairment affect a "major" life activity. However, the "materially
limit" standard is less stringent than the ADA, 170
making it, in practice, more comparable to the New York standard.
Similarly,the California Fair Employment and Housing Act, 171 is significantly more expansive than the
definition in the ADA, as it eliminates the standard of a "substantial"
limitation, focusing instead on whether discrimination is occurring,
and/or reasonable accommodations exist and have been provided. 172 In addition, an alternate state statutory
model, as embodied in the Maine Human Rights Act, combines a broad
definition of disability comparable to the ADA (involving a substantial
limitation standard), with an additional category of coverage based on a
per se list of specific disabilities which enjoy protection, regardless
of the severity. 173

While New York is among the states providing wider coverage in terms
of its definition of disability, some state statutes go further in
protecting individuals with disabilities, in other regards. For
instance, Colorado, Hawaii and Michigan differ from both the ADA and New
York State, in that there is no minimum number of employees an employer
must have, in order to be covered. 174 In
addition, the range of liable parties is extended in some states.
Whereas it has been difficult under the ADA to hold individuals other
than the employer entity accountable, meaning that managers and
supervisors are usually not personally liable, some states - notably New
Jersey, Tennessee, and Pennsylvania - apply liability to individual
employees who aid or facilitate violations of the respective state
statutes. 175

New York City is unusual in its placement of the burden of proof of
whether an employee is qualified on the employer. However, some state
statutes have been interpreted to make the burden of proof or plaintiffs
comparatively lighter than it is under the ADA or the NYSHRL.
Massachusetts, for instance, eases the burden for plaintiffs of
demonstrating that an adverse employment action was motivated by
disability discrimination. 176 Under the
Massachusetts state statute, it is adequate to prove that disability
discrimination was simply a factor, rather than a primary motivator. 177

In addition to state statutory models, some useful bases for
comparison exist in international law, and other national models. The
United Nations Convention on the Rights of Persons with Disabilities,
for instance, emphasizes that "disability is an evolving concept and
that disability results from the interaction between persons with
attitudinal and environmental barriers that hinder their full and
effective participation in society on an equal basis with others." 178 This conception avoids an emphasis on measuring
the severity or substantive impact of an impairment, and focuses
instead on the social consequences of discriminatory treatment - as
critical to legal recognition of disability. The Australian Disability
Discrimination Act of 1992 also provides a very expansive definition of
disability, including components comparable to all those covered
categories within the ADA, but without a severity requirement, and with
additional protection for anyone who may acquire a disability in future,
whether based on genetic predisposition, or any other reason. 179

While the state of New York has a number of laws and policies
intended to eliminate employment discrimination against, and increase
employment of, people with disabilities, coordinated efforts to address
gaps in the existing resources and to reform problem areas remain a
pressing concern and opportunity for action.

Improve Government Enforcement:

To improve enforcement of
the Human Rights Law through the Division of Human Rights, funding and
resources provided to the Division need to be increased. Timely
investigation and resolution of complaints serves both the employer and
employee communities, by ensuring evidence and memories regarding the
allegations are still available. In order o better achieve deadlines and
goals provided for in the Human Rights Law (such as bringing the
current median of 244 days for investigation down to the statutory
guideline of 180 days). Division investigative staffing should be
increased overall. Further, auditing and empirical study is needed to
evaluate the effectiveness of the Division in handling disability
complaints. Careful tracking and publication of data is needed regarding
the Division's dismissal rate, as well as its outcomes and relief.
Evaluation should include comparative data for disability, race, and
gender discrimination claims. The State Assembly is currently
considering legislation which would amend the NYSHRL and establish plans
to increase timeliness of complaint processing, identify requisite
staffing to achieve that goal, and provide for a grievance process if
complaints are not handled appropriately, and a review process in cases
where probable cause is not found. 180. If
passed, this legislation could actualize several of these
recommendations, provided implementation is thorough, and includes a
clear commitment to adhere to statutory maximum timing for investigation
and resolution of complaints.

In addition, because disability discrimination cases often involve
theories and concepts of discrimination that differ from traditional
race and gender discrimination claims, more intensive, specialized
training on disability for all involved staff should be provided
regularly. In order to ensure consistency of approach to disability
enforcement and policy, the Division should consider creation of a unit
specifically focused on disability discrimination or hiring an expert in
disability rights law to consult and guide disability cases handled by
generalists. The Division should have a strong mandate to engage in
pro-active enforcement, and to initiate impact litigation, directed
towards both private and state employers. The Division should also be
encouraged to pursue significant monetary remedies, as well as fines,
for disability-based discrimination, in order to discourage employers
from discriminating, to encourage individuals with disabilities to
pursue claims when they encounter discrimination, and to emphasize the
state's commitment to preventing disability discrimination.

The low employment numbers for people with disabilities indicates
significant discrimination occurs at the application and hiring stage.
Yet, because applicants with disabilities are not given a reason for
non-selection, discrimination at the hiring stage is very difficult to
identify and prove. The most effective approach to prove, and to
prospectively discourage, such discrimination is through matched-pair
testing programs, such as those used in the fair housing context. The
Division should implement a matched-pair testing program as modeled by
the New York City Commission, with the addition of a disability-specific
matched pair testing program.

Facilitate Private Enforcement:

There are currently proposals in the New York State Legislature
which, if adopted, would allow for the awarding of attorney's fees and
expert witness fees, and will allow for punitive damages up to $10,000. 181 As the U.S. Supreme Court has noted, fee
shifting is very important to encourage civil rights plaintiffs to act
"as a 'private attorney general,' vindicating a policy that Congress
considered of the highest priority. If successful plaintiffs were
routinely forced to bear their own attorneys' fees, few aggrieved
parties would be in a position to advance the public interest by
invoking the injunctive powers of the federal courts. Congress therefore
enacted the provision for counsel fees-not simply to penalize litigants
who deliberately advance arguments they know to be untenable but, more
broadly, to encourage individuals injured by racial discrimination to
seek judicial relief under Title II." 182
The New York Division of Human Rights has limited resources and cannot
be expected to address all instances of disability-based employment
discrimination. Individuals with disabilities who have experienced
employment discrimination - particularly termination - are unlikely to
have the resources to pursue litigation and discriminating employers are
incentivized to retaliate against complaining employees by terminating
them in order to undermine their ability to pursue claims. The inability
to secure attorney's fees is currently a primary limitation in the
NYSHRL, as compared to the ADA, and discourages plaintiffs from pursuing
relief under the state, as compared to the federal law. While the
NYSHRL has advantages relative to the ADA in other regards, these
advantages are likely to be under-utilized, as long as the ADA is the
only basis for pursuing punitive damages, or off-setting the cost of
litigation.

Increase Public Education and Dissemination of Information:

Without access to information about New York disability rights law
and how it differs from better-known federal law, both employers and
employees are at risk. At the federal level, ADA Centers (formerly known
as Disability & Business Technical Assistance Centers) provide
substantial resources, information and education to employers,
employees, and other stakeholders regarding compliance with and
actualization of the ADA. 183 There is no
state-level equivalent, assisting concerned parties in comprehending the
meaning of disability discrimination in New York State employment and
law. Whether through expanded funding channeled to the Human Rights
Division, or through another state body or contractor, the provision of
adequate public education and technical consultation will strengthen the
efficacy and impact of existing state law and resources.

Expand Individuals Protected:

Proposed legislation which would provide protection for parents of
children with disabilities will assist in filling a serious gap in
current protection in New York. However, the current proposal is too
limited (covering only parents caring for children with disabilities) to
prevent discrimination against the family members and loved ones of
people with disabilities. Employers may discriminate on the basis of
many types of relationships with individuals with disabilities (both
caregivers and non-caregivers, as well as spouses, children, and other
associates). All such discrimination is improper and antithetical to the
purposes of New York's antidiscrimination policies. Any employment
discrimination based on association with a person with a disability
should be prohibited. Further, family caregivers should receive
additional protected rights to workplace accommodations, where it does
not create an undue burden for employers, including flexible scheduling
where appropriate. The definition of "family" should include spouses or
domestic partners, siblings, and parents or grandparents.

Policy reform should also expand the protections under the NYSHRL,
using the more inclusive definition of disability modeled in the New
York City Human Rights Law. Experiences under the federal ADA have
demonstrated that a narrow definition of disability is unnecessary, and
even antithetical, to appropriate civil rights protection for people
with disabilities. Strict definitions of the protected group have served
to unnecessarily focus employers, employees, and courts on definitional
issues to the detriment of substantive questions of whether actions
were discriminatory. As a result, people for whom policymakers intended
to provide protection have been excluded without consideration of
whether discrimination occurred. Many individuals with disabilities live
below the poverty line and have inadequate access to health care. If
NYSHRL continues to require a medical diagnosis, some individuals will
be excluded from legal protection based on lack of essential medical
diagnoses. In this regard, disability intersects not only with class,
but with ethnicity, race, gender and age, and therefore is part of a set
of inter-related concerns regarding human rights and social inequality
in New York. Failure to cover all individuals with disabilities under
the NYSHRL decreases economic autonomy and increases dependence on state
and municipal social welfare and charitable resources. 184 Related problems associated with entrenched
poverty include increased homelessness, escalating health problems,
crime, and increased mortality.

Expand Employers Covered:

Because small businesses constitute a large percentage of the
employers in the United States and in New York, expansion of coverage to
cover all employers would significantly improve opportunities for
employment for people with disabilities. Small employers should not be
entitled to terminate or mistreat employees with disabilities because of
disability-, race-, or gender-based prejudices. Moreover, because the
reasonable accommodation requirements of the NYSHRL are limited by the
undue burden defense, which takes into consideration the resources of
the business, it is also likely that extending the accommodation
requirement to very small businesses would do no significant harm to
those businesses. Any accommodation costs may be further reduced by
their access to federal and state tax credits. 185
Therefore, current proposals to extend non-discrimination requirements
to all employers should be adopted.

However, extension of reasonable accommodation requirements to very
small businesses raises concerns about vexatious litigation that very
small businesses may not have the resources to defend and about
litigation over accommodations where reasonableness and undue burden are
legitimately at issue. However, given the unavailability of
attorneys' fees for prevailing parties under New York law, it is less
likely under New York law than under the ADA that a small business could
be forced to make unduly large payments in litigation. A conservative
approach would balance the equities and subject small businesses to the
nondiscrimination requirements (e.g., for terminating an employee
because of a disability) while immunizing them from reasonable
accommodation requirements, either through complete exemption, through a
limitation on the size of small businesses required to provide
accommodations, or through an explicit proportionality requirement
balancing the cost of an accommodation against the small business'
annual budget.

An interactive process, such as that required by the ADA, is a
cornerstone of the individualized approach to reasonable accommodations.
Through this process, both the employer and employee have a say in
determining what accommodations will be effective and appropriate.
Neither the employer nor the employee should be encouraged to
unilaterally make accommodation decisions. Moreover, such decisions
should generally not be decided by courts or legislatures, but should be
determined based on the individual circumstances. While recent common
law developments have enhanced the employer duty to engage in the
interactive process, this obligation is not explicitly codified in the
NYSHRL. Amending the state statute to specify that failure to engage in
interactive process is a violation of the law will substantially
strengthen the imperative to accommodate employees with disabilities.
Given that the "interactive process" is a relatively recent development
in New York State law, public/legal education geared towards employers,
employment agencies, labor unions, disability organizations, vocational
and educational resources, and social service workers, is needed to make
certain new legal developments benefit workers with disabilities.

In addition, helping individuals remain at work or return to work
after developing a disability provides important benefits to employers,
employees and the State. In order to achieve those benefits and make the
NYSHRL equivalent to the ADA, New York State should more explicitly
require employers to offer reassignment to alternative positions, where
vacant and appropriate, to individuals with disabilities who become
unable to perform in a particular job.

Adopt Reasonable Standards of Proof:

Recognizing that employers have greater access to information about
job requirements and accommodation possibilities, the NYSHRL should
adopt the burden of proof expectations modeled in the New York City
Human Rights Law, requiring employers to prove an applicant or employee
is unqualified. In addition, as in some other states, the standard for
establishing a discriminatory act should ideally be that disability
discrimination was a factor, rather than the primary motivation. This
latter measure is important in ensuring that in "mixed-motive" cases,
where disability is not an isolated or sole factor engendering
discrimination (but is primarily at issue), that plaintiffs will still
have legal protection. 186

Strengthen Commitments of State Agencies:

State government employers are under the same obligations applied to
private employers to avoid disability discrimination. However,
government agencies also have additional affirmative action obligations
(e.g., Executive Order 6; Civil Service Laws 55b/c). In light of the
large size of the state workforce, committing to uphold a higher
standard of inclusion and equity in New York State agencies, will
strengthen the full inclusion of people with disabilities in the state
workforce. Areas for intervention include a commitment to publicize and
provide education to workers about disability and accommodation
policies, training for human resources and middle management on the
interactive process, and obligations to monitor recruitment, retention,
and advancement rates attentive to the proportionate inclusion of people
with disabilities.

The Civil Services Laws' exclusive reliance on employer-appointed
physicians as a basis for termination should be revised, or more closely
monitored, in order to ensure that there is adequate recourse, in
instances where the employer-appointed physician may have a conflict of
interest, and/or where additional medical testimony supports fitness to
work. In addition, the Civil Service Laws regarding leave time should be
examined to ensure consistency with the ADA and NYSHRL, both of which
require leave as a reasonable accommodation and both of which require
reinstatement when an employee is able to return to work following
leave. The Civil Service Laws' current one-year cap on leave may violate
the ADA and NYSHRL to the extent that leave of more than one year is
reasonable and necessary.

Partnering Organizations

2. U.S. Dept. of Labor, Bureau of Labor Statistics, The
Employment Situation, tbl.A6, (May 7, 2010),http://www.bls.gov/news.
release/pdf/empsit.pdf. The general unemployment rate in New
York as of February 2010 is 8.8%. See U.S. Dept. of
Labor, Bureau of Labor Statistics, Regional and State Employment and
Unemployment, tbl.A, (May 21, 2010),http://www.bls.gov/news.
release/pdf/laus.pdf.

25. The statute does not clearly indicate whether a
history of being misperceived as having an impairment in the past (e.g.,
mis-diagnosis of mental illness)will constitute a "record" of
impairment, but that situation would appear to constitute either a
"record" or a "regarded as" claim. Id.

30.See, e.g., Horgan v.
Whitaker, 871 N.Y.S.2d 443 (3d Dept. 2008)(holding that where
defendant/employer refused to recognize an emergent medical condition as
a disability, claiming it was a side effect of job stress, it was
enough that the condition had been vetted by established medical
techniques); State Div. of Human Rights v. Xerox Corp., 480
N.E.2d 695, 698 (N.Y. 1985)(holding that obesity is a disability because
it impairs bodily integrity and can lead to future more serious
conditions, even though it currently did not limit major life
activities).

71.See, e.g.,Krikelis v. Vassar
College, 581 F.Supp.2d 476 (S.D.N.Y. 2008)(holding that a policy
about the structure of employee breaks should be modified to accommodate
the needs of a diabetic employee who needed to eat more frequently).

74. 14 C.F.R. § 1630.15(b)(2); Echazabal v. Chevron,
536 U.S. 73 (2002) (holding that employer did not have to hire a
qualified employee with hepatitis C for a job in refinery because
employer believed employee's health would be in danger).

77.See, e.g., Shannen v. Verizon
N.Y., Inc., 2009 WL 1514478, 1, 6 (N.D.N.Y.2009) (holding that an
employer was not in violation of the NYSHRL or the ADA,where it required
the employee to submit to a psychiatric evaluation, after the employee
stated: "if someone was bothering me, I would go postal.")

78.SeePhillips v. City of New York,
884 N.Y.S.2d 369 (1st Dept. 2009) (establishing that unlike federal and
state laws, the New York City Human Rights Law made both undue hardship,
and the employee's incapability of performing essential job functions
an affirmative defense). For analysis,see A. Michael Weber &
Bruce R. Millman, Responding to the Expanding City and State Human
Rights Laws,243-19 N.Y.L.J. 1 (Jan. 2010).

102. N.Y. Exec. Law § 297(9). If an individual
has filed a complaint with the Division, and decides to go to court,
(s)he may voluntarily dismiss the complaint with the Division in order
to move forward in the state court system.

151.See, e.g., Brady v. Dammer, 573
F.Supp.2d 712 (N.D.N.Y. 2008) (examination under Section 72is not an
adverse employment action subject to the ADA); Jones v. New York City
Housing Authority, 104 F.3d 350 (2d Cir. 1996) (employee who made
threats was not qualified); Baum v. Rockland County, 161 Fed
App'x 62(2nd Cir. 2005) (requiring a medical examination is not an
adverse employment action); Mair-Headley v. County of Westchester,
41 A.D. 3d 600 (N.Y. App. Div. 2nd Dept 2007) (employer not
required to create a new light-duty position as a reasonable
accommodation under the ADA). Courts have found in favor of
plaintiffs following termination, where the plaintiff's disability was
caused by a workplace injury covered by workers'compensation, Ross v.
Town Bd. of Town of Ramapo, 78 A.D.2d 656 (N.Y. App. div. 3rd Dept.
1980), or when the employer terminated an employee who had been found
fit to return to work by the employer's chosen physician, Bodnar v.
New York State Thruway Authority, 52 A.D.2d 345 (N.Y. App. Div. 3rd
Dept 1976).

182. Newman v. Piggie Park Enters., Inc., 390 U.S. 400,
402 (1968). See also Robert V. Percival & Geoffrey
P. Miller, The Role of Attorney Fee Shifting in Public Interest
Litigation, 47 Law & Contemp. Probs. 233, 241 (1984) ("Congress
generally authorizes fee shifting where private actions serve to
effectuate important public policy objectives and where private
plaintiffs cannot ordinarily be expected to bring such actions on their
own. Fee shifting is designed to remove some of the disincentives facing
public interest litigants,thus increasing access to the courts for
groups who otherwise might be unrespresented or underrepresented.").

184. For discussion of the interplay between
disability civil rights law and reduction of welfare dependency, see
generally,Mike Oliver, Disability & Dependency:a Creation of
Industrial Societies?, In Len Barton, ed., Disability
&Dependency,6-22 (1989); Mark Weber, Welfare and the Civil
Rights Model of Disability, unpublished (2009); Ruth O'Brien, Crippled
Justice: The History of Modern Disability Rights Policy in the
Workplace, University of Chi. Press(2001).

186. In the 7th circuit, the court of appeals recently
held that the ADA does not provide protection in such cases. Serwatka
v. Rockwell Automation,Inc., 591 F.3d 957 (7th cir, 2010). While
this decision is not binding in New York State, it highlights the
importance of establishing clear protections under state law, in order
to ensure protections not explicitly guaranteed under the ADA.